By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Inc.

mployees that are obese—possibly as little as 30 pounds over the recommended body weight for their height, age, and sex—are now more likely to be recognized as disabled, with rights under the 2008 amendments to the Americans with Disabilities Act (ADA). In June 2013, the American Medical Association (AMA) voted to reclassify obesity as a disease “requiring a range of medical interventions to advance obesity treatment and prevention,” which could influence how obesity is treated under the ADA.1

Traditionally, courts were unwilling to find that obesity by itself is a disability and instead relied on underlying medical conditions caused or exacerbated by obesity to find an ADA-protected disability. Most viewed obesity as merely a voluntary condition caused by a lack of self-control. Some courts around the United States are now starting to find that obesity may be an ADA-protected disability that must be accommodated. This is not surprising, considering the other conditions arguably caused by personal choices (e.g., alcoholism) that are considered disabilities under the ADA. For example, consider the cases below:

Lowe v. American Eurocopter, LLC, No. 1: 10CV24-AD (N.D. Miss. Dec. 16, 2010). An employee (who filed multiple other discrimination claims) stated a sufficient ADA claim when she alleged that her obesity substantially limited the major life activity of walking, as well as claiming that she was ridiculed and ultimately terminated because of her obesity.3

EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La. 2011). An employee that was severely obese at all relevant times and had multiple resultant disorders, including diabetes, congestive heart failure, and hypertension, prevailed when, relying on Equal Employment Opportunity Commission (EEOC) guidelines, the federal court in Louisiana held that severe obesity qualified as a disability, and there was no requirement that an underlying physiological basis be proven.4

EEOC v. BAE Systems Inc., CV No.:11-cv-3497 (S.D. Tex. 2012). A Virginia-based military vehicle manufacturer did not admit any wrongdoing, but agreed to pay a $55,000 settlement to a morbidly obese materials handler fired from his $21/hour job at a Sealy, Texas, plant for being too fat.5

Not every recent court case has gone in favor of the obese employee, however. In May 2013, in Andrew O. v. Racing Corporation of West Virginia, a state court in West Virginia ruled in the employer’s favor when a morbidly obese blackjack dealer sought accommodations from his employer with respect to his workplace uniform (the standard issue was too small; he needed a 7X tuxedo shirt) and break locations (he was unable to walk to and from the employee break area during his 25-minute break without shortness of breath and fatigue).

However, given the recent amendments to the ADA, through which the EEOC and many federal courts have significantly lowered the bar for proving a disability, it is not recommended to put too much stock in this decision. Rather, employers should err on the side of caution and continue to provide reasonable accommodations to morbidly obese employees, as well as those with other conditions that may arguably fall within the scope of the ADA. It is hoped that this applies more to civilian employees than to police officers, as officers must be capable of physical exertion.

EEOC Position and ADA Amendments

It is entirely likely that the EEOC, which has recognized morbid obesity as a disability, may now further expand its definition.

Two areas of the ADA Amendments Act (ADAAA) that likely will affect how obesity is treated are the expansions to the definitions of “major life activities” and “substantially limits.” “Major life activities” under the ADA Amendments Act include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also now includes the “operation of a major bodily function,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The final regulations also add sitting, reaching, and interacting with others to the list of major life activities and further define “operation of major bodily function” to include hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular functions. The regulations emphasize that the list of major life activities is intended to be illustrative, not exhaustive, so other activities may be covered. Further, to be considered a major life activity, the activity does not have to be of “central importance to daily life.”

Social Security Obesity Disability Definition

If an officer or other department worker is disabled because of obesity so severe that it prevents such person from working, he or she may well be entitled to Social Security Disability benefits (assuming they are covered or at one time worked under Social Security, of course).

“Regarded as? Claims

Following the enactment of the ADAAA, proving a “regarded as” claim will be much easier for employees who allege discrimination based on their obesity. Although an employee has to show a substantial impairment of a major life activity to show an actual disability, that is not required for post-ADAAA regarded as claims. An individual can be covered under the regarded as prong by establishing that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.

Although the AMA’s action was intended to affect medical treatment for the obese, there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled.

What Are Reasonable Accommodations?

If an obese individual is considered disabled under the ADA, not only is it prohibited to discriminate against the individual based on the fact of obesity, but employers also must accommodate the individual so that he or she can perform the essential functions of the job. Obese individuals may have mobility problems such as difficulty walking or standing for extended periods or may have related health issues such as diabetes, heart conditions, and higher incidences of certain cancers, all of which may need accommodation.

The Job Accommodation Network (JAN), a free consulting service of the Office of Disability Employment Policy of the U.S. Department of Labor that provides information and advice to employers on custom job accommodations, gives several examples of possible accommodations for obese employees.6 Accommodations include large-rated ergonomic chairs, seat-belt extenders for vehicles and industrial equipment, and large-rated ladders. For obese individuals who cannot walk long distances, they made need closer parking spaces to the station or desks or offices in more accessible areas of the workspace.

Of course, an employer’s duty to accommodate an obese employee is not unlimited. For example, if the employee cannot perform an essential job function and there is no accommodation that allows the individual to perform the job, the essential function does not have to be removed from the employee’s job duties. However, employers should be able to show that they have considered all potential accommodations to allow the obese employee to perform this essential function and that the function is essential.

Police departments with accurate job descriptions listing essential job functions for police officers on “light duty” positions will fare better than those without such documents when it comes to refuting claims for discrimination for failure to accommodate. It may be a tougher challenge when it comes to dispatchers or other civilian employees, however.

Recommendations

Certainly chiefs are aware that they can no longer refuse to hire overweight dispatcher applicants because they don’t fit the department’s para-military image. However, even more subtle matters may expose a city or town to discrimination claims. For example, gone are the days of ignoring an obese employee’s request for a larger desk chair or other accommodations. In light of changes in the ADA and recent court decisions, police chiefs should confer with their municipality’s labor counsel and human resources or personnel director (if they have one) to anticipate issues and discuss training supervisors to appropriately handle everything from hiring to requests for accommodations.

Furthermore, employers or chiefs do not have to accommodate the employee if they can show that the accommodation causes the organization undue hardship. Note, however, that this standard is fairly difficult to meet since it means significant difficulty or expense in, or resulting from, the provision of the accommodation. The undue hardship standard requires employers to show that the accommodation involves significant difficulty or expense; is unduly extensive, substantial, or disruptive; or would fundamentally alter the nature or operation of the business. Thus, buying a heavy-duty chair for a dispatcher is not likely to qualify.

Until more courts or state anti-discrimination agencies issue decisions, chiefs will not be able to predict with certainty the best way to handle requests for accommodations by obese employees. Although some district courts still appear reluctant to find obesity to be a disability, chiefs should add obesity to the list of characteristics that may not be the basis for any type of discrimination or harassment and should incorporate it into their department’s anti-discrimination policies and training. Chiefs should also caution superior officers to avoid jokes or remarks that an employee is “too fat” to do something. Such a statement could be used to show, for example, that an employer regarded an employee as disabled.

Chiefs should take all requests for accommodation from obese individuals seriously, and they should not ignore legitimate requests because of negative stereotypes about the causes of obesity. Further, chiefs should be proactive if an obese employee is having trouble performing his or her job and determine if the problem is related to the employee’s obesity.

Chiefs should require medical certification if it is not obvious that the obese individual is impaired. As with all requests for accommodations these days, chiefs and supervisors should engage in an “interactive process” (discussion with the employee) to determine the appropriate accommodation. While not required to agree to their requests, chiefs should ask the employees what types of accommodations they have in mind. The ADA does not require a chief or employer to provide the best accommodation available or the one specifically requested by the disabled individual—an employer only has to provide an effective accommodation that meets the job-related needs of the individual. To this end, chiefs should be prepared to document their decision-making process. In particular, chiefs should be sure they can show that they looked at appropriate accommodations and can explain the rationale for denying any accommodation.

Recall that a department need not waive an essential job function as an accommodation. Some departments are still woefully inadequate when it comes to being able to document whether an obese individual can perform the essential functions of the job with or without an accommodation. Up-to-date and accurate job descriptions will prove very helpful.

Retaliation claims are very often made these days in all kinds of discrimination cases. Not only is the employee protected, but his or her friends and family members are protected from any form of retaliation. As with other forms of harassment, obese persons may make a claim if they are a target of harassment or retaliation. Chiefs should ensure that their municipality offers training for managers that teaches them to be sensitive when dealing with obese employees and makes sure they are not promoting ugly stereotypes about why an employee may be obese or taking action against them because of their appearance. ♦

From The Police Chief, vol. LXXX, no. 12, December 2013. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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